Commissioner of Police v Kirby [2010] QDC 110

1-1 [2010] QDC 110 DISTRICT COURT APPELLATE JURISDICTION JUDGE BOTTING No 2746 of 2009 COMMISSIONER OF POLICE Appellant and NATHAN WAYNE KIRBY Respondent BRISBANE ..DATE 15/03/2010 JUDGMENT -- 1 of 10 -- 1-2 JUDGMENT HIS HONOUR: This is an appeal against a decision of a Magistrate given essentially on two occasions but initially, as I recall it, on the 8th September 2009. On that day the respondent pleaded guilty to an offence of driving whilst not being the holder of an appropriate licence. The learned Magistrate originally imposed a fine of $100 and made no other relevant order. There was an application which was acceded to to re-open the matter and on the subsequent hearing the learned Magistrate made an order under section 19 subsection 1 of the Penalties and Sentences Act releasing the offender, that is the now respondent absolutely. He declined on that occasion to order that he be disqualified from holding or obtaining a driver's licence. The appellant submits essentially that the orders made by the learned Magistrate were manifestly inadequate and, in any event, were contrary to law in that pursuant to the provisions of section 78 of the Transport Operations Road Use Management Act of 1995 a period of disqualification should have been imposed. I do not propose to go through all the various matters which have been canvassed before me. Essentially, as I understand it, the respondent had as a result of orders made by the organisation referred to as SPER been not entitled to drive a car for a period. As I understand it, it was submitted to the learned Magistrate and he accepted that as of the date of the offence the respondent was unaware of the fact that he had -- 2 of 10 -- 1-3 JUDGMENT been disqualified from holding or obtaining a licence or that his licence had been suspended. In fact, as I understand it, the licence had been suspended from the 24th May 2009 until the 10th July 2009. It was in the small hours of the 10th July 2009 that the respondent was stopped. It would seem that police officers first speaking with the respondent on the 10th July accepted, or largely accepted, his account that he was unaware of the fact of the suspension because they took no further action at that time other than, of course, as would be implicit, I suppose, in what I have said informing him of the fact that he was suspended from driving. However, 15 minutes later the same police officers came across the respondent who was driving. He told them that he had no other means of getting home and I have been told that he had reason to believe, because of ways in which he had been dealt with on other occasions, that he might lawfully drive to his home notwithstanding the fact that he had been informed of his suspension. The reason, as I understand it, why police first intercepted the respondent was so that they might conduct a random breath test. It seems again to be accepted that no alcohol was found to be in the respondent's breath at the time of his being apprehended. So far as I am aware there was nothing about his manner of driving which resulted in his being apprehended. As I said, -- 3 of 10 -- 1-4 JUDGMENT it was a result of police officers performing their duties in respect of random breath analysis operations. The respondent pleaded guilty before the Magistrate. As I think I already noted, the Magistrate took into account the fact that the suspension by SPER was due to expire the very day of his being intercepted. The Magistrate was told, as I understand it, that payment of the outstanding SPER account had been made and various other matters were put before the learned sentencing Magistrate. The learned Magistrate at the time took the view that the offence was, in all the circumstances, a trivial one and, indeed, he expressed some surprise apparently at the fact that those responsible for prosecuting these matters had decided to proceed. As I think I have already mentioned, he imposed a fine of $100. No conviction was recorded and no order was made in respect of the disqualification period. The matter was brought on again on the 8th September 2009 when the provisions relating to the licensed disqualification were brought to his Honour's attention. He again emphasised the trivial nature, as he perceived them, of the events which gave rise to the charge and took the view that he might make the order, which I have already mentioned, that is that he be released under section 19, absolutely. It seems to me that there are essentially two issues for me to determine today. -- 4 of 10 -- 1-5 JUDGMENT Whilst this appeal proceeds by way of rehearing, it is, I think, common ground that one gives significant respect to the decision of the sentencing Magistrate in cases such as these. It seems to me that his Honour's finding that the circumstances of the respondent's committing the offence, that those circumstances were trivial, is one which was well and truly open to his Honour. Indeed, one can understand perhaps some of his apparent surprise at the decision to prosecute matters. In any event, it seems to me that I should not interfere with his conclusion that the circumstances of the respondent's apprehension and the nature of his offence are such as they may be properly characterised as being trivial. That then introduces the matter which perhaps is more challenging and concerning as to whether it was in the circumstances open to his Honour to proceed pursuant to the provisions of section 17 and 18 of the Penalties and Sentences Act without imposing a period of disqualification as is contemplated by subsection 3 of section 78 of the Transport Operations Road Use Management Act of 1995. That Act relevant relevantly provides this that if a Court imposes a conviction on a person, such as the respondent in this case, and if any of a number of listed circumstances applies, the Court "in addition to imposing a penalty," must disqualify the person from holding or obtaining a Queensland driver's licence for the period mentioned in relation to the circumstance. -- 5 of 10 -- 1-6 JUDGMENT Both counsel agree that the relevant circumstances is that set out in subsection (f) of subsection 3 of section 78 and that provides that a period of disqualification of at least one month, but not more than 6 months, must be applied. The provisions of subsection 3 apply whether or not a conviction is recorded for the offence. See subsection 4. The appellant submits that the requirements of this Act, which, of course, is an Act which post-dates the Penalties and Sentences Act are mandatory. I've been referred particularly to the words "that in addition to imposing a penalty the Court must", I emphasise the word 'must', "disqualify the person holding or obtaining a Queensland driver's licence. The respondent, on the other hand, has referred me to the provisions of the Penalties and Sentences Act and particularly sections 17 and 19, which were the ones which his Honour purported to act under. The purpose of the Penalties and Sentences Act are set out in section 3. Critically, so far as my present deliberations are concerned, they include (a) collecting into a single act general powers of Courts to sentence offenders and (b) providing for a sufficient range of sentences for the appropriate punishment of rehabilitation of offenders and in appropriate circumstances ensuring the protection of the Queensland community is a paramount consideration. There are other purposes that they don't seem to me to be particularly pertinent to my discussion today. -- 6 of 10 -- 1-7 JUDGMENT The concept of a conviction is also defined in section 4 of the Act to mean a finding of guilt or the acceptance of a plea of guilty by a Court. Section 12, as I think is well known, certainly by members of this Court, provides that a Court may exercise a discretion to record or not record a conviction as provided by the Act and it goes on to provide in subsection 3 that except as otherwise expressly provided by this or another Act a conviction without recording the conviction is taken not to be a conviction for any purpose. Having made those observations, we come back to the critically relevant sections for this discussion today. Subsection 1 of section 17 provides that if a Court considers that it is appropriate that no punishment, or only a nominal punishment should be imposed on an offender, the Court may make an order under section 19. Section 19 in subsection 1 provides essentially two orders that may be made. The first is that which was adopted by his Honour in this case of releasing an offender absolutely. The second is again ordering the release but only upon a recognisance and subject to conditions. As I read section 17 and 19, it seems to me that the first of those options is appropriate if the Court considers that it is appropriate that no punishment be imposed and that the second course is the more appropriate one where the Court concludes that only a nominal punishment should be imposed. -- 7 of 10 -- 1-8 JUDGMENT I have had some misgivings in trying to reconcile these provisions. I certainly accept the apparently mandatory requirements which are set out in section 78 to which I've already referred. But those provisions are prefaced by the phrase that the Court must disqualify, and again I quote, "in addition to imposing a penalty." It seems to me that the disqualification which must be imposed in subsections 3 of section 78 are disqualifications which are in addition to some other penalty which the Court imposes. On the other hand when one looks at section 17 and 19 of the Penalties and Sentences Act, it seems to me to be clear that section 17 contemplates that a Court may, in appropriate circumstances, conclude that no punishment is warranted. In other words, no penalty is to be imposed and that if that is the view that the Court takes then the proper order is one under subsection (a) of subsection 1 of section 19 and that seems to have been the course that his Honour took in this case. It seems to me that if one takes that view then one can accept that there is not necessarily an inconsistency between the provisions of subsection 3 of section 78 of the Transport Operations and Road Use Management Act and the provisions of section 17 and 19 of the Penalties and Sentences Act. Taking that view, as I do, it seems to me that it was within his Honour's power to conclude that the circumstances were such that it was appropriate that no punishment should be imposed and that he might make an order reflecting that conclusion under subsection (a) of section 1 of section 19 and -- 8 of 10 -- 1-9 JUDGMENT order that the respondent be released absolutely. In those circumstances, it seems to me that his Honour was entitled to take the course of not making an order under subsection 3 of section 78 of the Transport Operations Road Use Management Act of 1995. In coming to that conclusion, I have had some assistance by reference to the case which learned counsel for the respondent referred me, namely that is a case of re Stubbs, a decision of the Court of Appeal in New South Wales reported in volume 47 of the State Reports of New South Wales at 329. By no means can it be said in my view that that case is on all fours with the present case but, as I've said, it does seem to me to be supportive, at least in some respects, of the conclusion to which I've come to. In my view then, the appeal should be dismissed. Is there anything that either of you wishes me to touch upon over and above that which I've explored in my reasons. MS COOPER: No, your Honour. MR KIMMINS: No, thankyou, your Honour. HIS HONOUR: Yes. Very well, the appeal will be dismissed. MR KIMMINS: I ask for costs, your Honour. HIS HONOUR: Do you wish to be heard on that? -- 9 of 10 -- 1-10 JUDGMENT MS COOPER: Your Honour, I have no submissions about that. HIS HONOUR: I order that the appellant pay the respondent's costs of the appeal to be agreed, or failing agreement, to be assessed. MR KIMMINS: I think they're fixed under the Act, your Honour. ... HIS HONOUR: The order will then that the appellant pay the respondent's costs of the appeal in the agreed sum of $1,800. MR KIMMINS: Thank you, your Honour. HIS HONOUR: Thank you both for your help. MS COOPER: Thank you. ----- -- 10 of 10 --